Temporary worker

Labour & European Law ReviewWeekly Issue 50608 February 2017

Although member states can restrict the concept of “worker” under national law, the Court of Justice of the European Union (CJEU) has held in Betriebsrat der Ruhrlandklinik gGmbH v Ruhrlandklinik gGmbH, that with regard to temporary workers, the critical issue is whether they are in an “employment relationship” under the temporary work agency directive.

Basic facts

The German Red Cross Association of Nurses in Essen is a not for profit organisation whose members are all trained nurses. Members either work for the association or are seconded to third party organisations. Under German law, they do not have the status of workers since they do not have a contract of employment with the association.

As part of a secondment agreement, the association agreed that Ms K, a trained nurse, would start work for Ruhrlandklinik, an-inpatient clinic, on 1 January 2012. In return the clinic compensated the association for its personnel costs plus a three per cent flat-rate administrative charge.

However, the clinic’s works council refused to agree to the secondment on the ground that her appointment was not temporary and was therefore contrary to the German law on the supply of temporary staff.

Decisions of lower courts

The clinic’s application to the court for a judicial decision authorising her secondment was granted but the works council appealed to the Federal Labour Court.

Noting that the prohibition on the non-temporary supply of staff applied only to employees of a temporary-work agency, the Federal Labour Court asked the CJEU to decide if Articles 1(1) and (2) of Directive 2008/104 on temporary agency work applied.

Relevant law

Article 1(1) states that the directive applies to “workers with a contract of employment or employment relationship with a temporary work agency who are assigned to user undertakings to work temporarily under their supervision and direction”.

Article 1(2) states that the directive “applies to public and private undertakings which are temporary-work agencies or user undertakings engaged in economic activities whether or not they are operating for gain”.

Article 3(1)(a) defines a “worker” as someone who, in the member state concerned, is protected as a worker under national employment law.

Decision of CJEU

The CJEU had to decide whether Ms K was a “worker” within the meaning of Article 1(1), and whether the association was engaged in “economic activities”, within the meaning of Article 1(2), despite the fact that she did not have a contract with the association and did not satisfy the definition of a worker under German law.

The Court held that irrespective of how the concept of a worker was defined in national law, the critical issue was whether they were in an “employment relationship” under article 1(1) of the directive.

It held that this included anyone who for a certain period of time performs services for and under the direction of another person, in return for which they receive remuneration. It was for the referring court to determine whether those conditions were satisfied in the present case and whether Ms K was therefore a “worker” within the meaning of the directive.

Although member states could restrict the concept of “worker” under national law, the CJEU held that they could not do so for the purposes of the directive as the whole point of the directive would otherwise be undermined.

It also held that the association was engaged in “economic activities” as it assigned nursing staff to medical and health care institutions in return for financial compensation covering personnel and administrative costs.

Comment

This case extends the scope of the Agency Workers Directive by finding that bank nurses did not have to have a contract personally to do work in order to be a worker.